Report calls for overhaul of enforcement of equality legislation

The individual approach to enforcement of equality legislation – which relies on individuals taking action against employers – is no longer fit for purpose, says the Women and Equalities Committee in a report of its year-long inquiry into the Equality Act.

The report argues against relying on the individualised approach which dates back to the 60s and 70s and recommends that this must be replaced by a new approach which provides “a sustainable deterrent and tackles institutional and systemic discrimination”.

While individuals must still have the right to challenge discrimination in the courts, says the Committee, the system of enforcement should ensure that this is only rarely needed. It says this will require a fundamental shift in the way that enforcement of the Equality Act is thought about and applied.

The report is very critical of the Equality and Human Rights Commission where enforcement is concerned, citing the recent BBC equal pay case, and calls for it to publish data on its enforcement activity and recommends that the EHRC assesses its enforcement policies and practices to ensure that the threshold for suspecting an unlawful act may have taken place “is no higher than required by the law”.

The report also says the financial consequences of discrimination need to be such that they act as a significant deterrent. It recommends that courts and tribunals be given the power to ensure that their judgments can achieve change beyond individual cases and are able to issue remedial orders to require organisational change and make wider recommendations that support change.

Committee Chair Maria Miller says: “Creating a fairer society where people are not treated differently because of the colour of their skin, their sex, gender, sexuality or religion is central to British values. In our first four years, in inquiry after inquiry the Women and Equalities Committee has heard abundant evidence of the destructive impact discrimination has on people’s lives, as well as the heavy cost that puts on society and public services. One thing is absolutely clear: the burden of enforcement must shift away from the individual. We need a fundamental shift in approach, and our report shows how to do it.”

The Committee says its work in a range of areas has shown that individuals have difficulties enforcing their rights under the Act and has questioned the effectiveness of the Equality and Human Rights Commission. It says inquiries on pregnancy and maternity discrimination, transgender equality, disability and the built environment, workplace dress codes, older people and employment and sexual harassment in the workplace all identified widespread problems with enforcement.

The report’s main recommendations are:

• Develop a ‘critical mass’ of cases to inform employers and organisations about their legal duties and make adherence to existing equality law a priority for all organisations;
• Move away from relying so heavily on the current model of using individual litigation to create precedents;
• Make obligations on employers, public authorities, and service providers explicit and enforceable;
• Ensure that all who have powers to change the way in which employers, public bodies and service providers operate use their powers to eliminate discrimination and to advance equality;
• a call for the EHRC to refocus its work and be bolder in using its unique enforcement powers.

Miller adds: “Employers and service providers are not afraid to discriminate, knowing that they are unlikely to be held to account. We need a critical mass of cases to build a culture where compliance with the Equality Act is the norm.”

“The EHRC must overcome its timidity. It has unique powers, limited resources and must use them for maximum impact. It should make regulators, inspectorates and ombudsmen not only key partners in creating a critical mass of enforcement action but also key targets for enforcement action when those same regulators, inspectorates and ombudsmen fail to meet their own equality duties.”

The Committee recommends that the Government’s Labour Market Enforcement Director should play a fundamental role, alongside the proposed new single labour market enforcement body: if such bodies acted consistently on their obligations, then the EHRC could become the strategic enforcer that it should be.

The report also recommends that the Government must also make this fundamental shift in the way that enforcement of the Equality Act is thought about and applied.

Miller says: “Above all, the Government must act on its own obligations. It must embed compliance and enforcement of the Equality Act into its most significant strategies and action plans. That it has not yet done so in its recent efforts to improve the quality of work – where stopping discrimination is so clearly an essential precondition to any improvements – beggars belief. Our report sets out exactly what needs to be done, and we look forward to hearing how the Government plans to act on this.“

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